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2. On the trial of a slave for å murder committed in an adjoining county, from

which the venue had been changed, two of the jurymen who joined in a ver-
dict of “guilty,” stated on their voir dire, the one that he had formed an
opinion from the rumors he had heard; the other from the arguments of
counsel to which he had listened on the previous day upon the trial of an
accomplice of the prisoner for the same offence, and in which the witnesses
were the same ; each stated he had formed and expressed an opinion, one
said his mind was clearly made up from rumor, each thought he could decide
the case from testimony free from bias, but both thought it would require some
testimony to remove the impression from their minds: Held, that under the
general rule which requires the juror to be indifferent between the parties,
these jurors were incompetent; there being nothing in the circumetances of

the case to make a departure from the general rule necessary. Ib.
3. The law on the point of what degree of opinion, as to the guilt or innocence of

a prisoner, formed by a juryman called upon to try him, is a disqualification
of such juror, considered at length; and the conclusion reached that no rule
of universal application could be laid down; that the formation of an opinion
by one who had heard all the testimony, was a disqualification ; while one
who had formed an hypothetical opinion from rumor, and who at the same
time declared he could render an impartial verdict, would be a competent
juror; between these extremes the qualification or disqualification must
depend on the circumstances of each case ; absolute freedom from precon-
ceived opinion should be required where it can be had; yet, where, from the
notoriety of the transaction, or other cause, that cannot be obtained, as near

an approximation to it as possible should be had. 16.
4. It is well settled, that it is competent for the circuit judge, in criminal prosecu-

tions, as well as in civil cases, to modify the instructions requested on either
side, so as to make them conform to his own views of the law.

Cicely v. State of Mississippi, 202.
5. On the trial of a prisoner for murder, his counsel asked this instruction, viz :

“If the jury, after weighing the evidence, have a reasonable doubt that
the prisoner is guilty, they are bound by law to find her not guilty;"
the circuit judge gave the instruction, with this addition, viz : “To war-
rant the jury in finding the prisoner guilty, there should be evidence before
them sufficient to satisfy their minds of her gailt, beyond a reasonable
doubt; that which amounts to mere probability only, or to conjecture or sup-
position, is not what is meant by a reasonable doubt; the doubt which should
properly induce a jury to withhold a verdict of guilty, should be such a
doubt as would reasonably arise from the evidence before them; and if such
a reasonable doubt should arise from the evidence, the prisoner should have
the benefit of that doubt :" Held, that the explanation was correct, and did

not vary the rule laid down by the instruction as it was presented. 16.
6. The following instruction asked by a prisoner indicted for murder, viz: “that

unless the jury are as well satisfied from the evidence of the guilt of the
accused, as they would be from the testimony of a single witness, testifying

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directly to the fact, they should acquit," was held to have been properly
refused; not because it was not a correct abstract legal proposition, but for
the reason that it had been in effect already given ; and in addition, as pro-
pounded, applied a rule neither practical nor altogether safe, in this, it not
only required the juror to be convinced from the circumstances beyond a
reasonable doubt, but exacted from him a comparison of his convictions,
with what they would have been, had there been direct testimony of guilt.

Ib.
7. In criminal or in civil cases, the verdict of a jury upon the facts will not be

disturbed, unless opposed by a decided preponderance of the evidence, or

based upon no evidence. 16.
8. The prisoner, a slave, was indicted for the murder of her mistress ; the jury

found her guilty; the court reviews the testimony which was purely cir-

cumstantial, and reaches the conclusion of her guilt. lb.
9. On the trial of a white man for the murder of a slave, it is not competent for

the prisoner to prove that the slave was generally insolent and impudent to
white persons, although not so at the time of his death to the prisoner who

caused it. Jolly v. The State of Mississippi, 223.
10. On the trial of a prisoner indicted under the statute of this state, (Hutch.

Code. 960,) which provides, that “every person who shall be convicted of
shooting at another with the intent to kill, &c., such other person shall be
punished by imprisonment,” &c., it is necessary to prove the intent as laid

in the indictment. Morgan v. The State, 242.
11. If, therefore, A. be indicted for an assault with intent to kill B., the indict-

ment will not be sustained by proof that A. made the assault with intent

to kill C., and accidentally wounded B. Ib.
12. Where, therefore, M. was indicted for an assault with intent to kill F., and

the court instructed the jury, that if M. shot into the crowd with intent to
kill any one, but not with the intent to kill F., and the shooting was not
in necessary self-defence, they should find the prisoner guilty ; it was held

that the instruction was erroneous. 16.
13. If the indictment be substantially correct, the judgment will not be arrested

merely because it is inartificially drawn. Ib.
14. All laws against gaming being declared by statute to be remedial and not
penal, a strict construction will not be applied to them.

Seal v. The State, 286.
15. The caption to the record of a conviction for gaming recited that “the venire

being returned into court executed by the sheriff, the following named
jurors appeared and answered to their names, to wit, &c., whereupon the
following named persons of the same were duly drawn, elected and empan-
elled, sworn, and charged, as a grand jury for the term :" it was held, that
the proceedings showed with sufficient certainty, in a case of conviction for
gaming where only reasonable certainty is required, that the indictment was
found by good and lawful jurors of the county, especially as no plea was

interposed to the panel. Ib.
16. The record, in its caption, stated that the proceedings took place “in the

circuit court of Harrison county, at a regular term thereof, begun and held
at the court-house of said county in Mississippi city, on the first Monday in
March, 1848 : " Held, that the recital was amply sufficient to show the term

of the court, and the house in which it was held. 16.
17. A prisoner convicted of gaming moved for a new trial on the ground that one

of the jury who tried him was an alien, and read the juryman's affidavit to
that effect, but did not himself make oath that he was not aware of this
disqualification of the juror at the time of his selection : Held, that if he
knew of the disqualification at the time, he waived it by not making the
objection, and should therefore have, if he did not know it, made oath to

that effect; for want of which the new trial was properly refused. Ib.
18. Where a prisoner is indicted for selling liquor to slaves without the permission

of the owner, master, or overseer, it will not legalize the sale or excuse the
prisoner that the master, with the view of detecting the prisoner in an
illegal sale, gave his negro, without the prisoner's knowledge, permission to
sell certain articles to the prisoner, for which the negro, in exchange, re-
ceived liquor of the prisoner; the master being present, also without the

prisoner's knowledge, during the transaction. Bond v. The State, 265.
19. Under the statutes and decisions in this state, it is a defect fatal to an indict-

ment that no prosecutor is marked on it; for which, even after verdict, new
trial refused below, sentence there, and writ of error' to the high court of
errors and appeals, the indictment will be quashed, and the prisoner re-

manded for a new indictment. Kirk v. The State, 406.
20. The statute (Hutch. Code, 893), which makes instructions of the circuit

court parts of the record without bill of exceptions, does not apply to crim-

inal cases. Stoughton v. The State, 255.
21. It seems doubtful whether, if a mortal blow were given in one county, and

the death happened in another, the party killing could be indicted at com-

mon law in either county. 16.
22. However that may be, in this state, by express statute, Rev. Code (Poin-

dexter), 314, the party may be indicted in the county wherein the death
took place; and, in the absence of clear authority at the common law for
indicting him in the county where the mortal blow was given, an indictment

there could not be sustained. Ib.
23. And a prisoner convicted under such an indictment would be remanded to

the county where the death occurred, for a new indictment. Ib.
24. In a prosecution against one indicted for selling liquor to a slave, “ without

the permission of the owner, master, or overseer,” it is not sufficient merely
to prove the sale of the liquor to the slave ; the state must show affirmatively
that the sale was made without the permission of the master, owner, or

McGuire v. The State, 257.

overseer.

25. It was held, therefore, error for the court below, in such a prosecution, to in-

struct the jury that the permission of the owner, master, or overseer was a
matter of exculpation of a positive nature, and that the jury might infer that
there was no such permission, from the failure of the defendant to introduce

proof of it. Ib.
26. In a prosecution for selling liquor to a slave, “ without permission, &c.,” it

was held error in the court below to refuse to instruct the jury "that it was in-
cumbent on the state to prove all the material facts constituting the offence
as charged in the indictment, otherwise the jury must acquit the prisoner.”

16.
27. It is the settled law in this state, that an indictment is defective if the name

of the prosecutor be not indorsed upon it according to the directions of the

statute. Moore v. The State, 259.
28. And that defect will not be cured if the indorsement be made after verdict,

and pending a motion in arrest of judgment; it seems it must be made before

the indictment goes to the grand jury. Ib.
29. The law of amendments does not apply to criminal cases. 16.
30. Where a prisoner was convicted of robbery, and the indictment, on motion in

arrest of judgment, quashed for want of the prosecutor's name indorsed on

it, the prisoner was remanded to jail for a new indictment. Ib.
31. An indictment for murder embraces within itself an indictment for man-

slaughter; and the statute which declares that no person shall be prosecuted for
any offence, other than murder, and certain other excepted ones, unless the
indictment be found within one year after the offence has been committed
will apply to the case of a prisoner indicted for murder, but who has been
guilty of manslaughter only, precisely as though he had been indicted for

the latter offence. Heward v. The State, 261.
32. A motion in arrest of judgment can only be sustained for matter apparent on

the face of the record ; if, therefore, an indictment charge an offence to have
been committed within the year previous to its finding, the judgment cannot
be arrested because, in point of fact, it appeared in proof that it was not

so committed. Bb.
33. Where a prisoner was indicted for murder, it was held erroneous in the court

below to refuse to instruct the jury that, if the offence did not amount to
murder, but only to manslaughter, and were committed more than a year

before the finding of the indictment, they must acquit the defendant. 16.
34. It seems that it is incumbent on the state, if a prosecution be not begun

within the year, in order to sustain the prosecution, to show that the prisoner
either fled or absconded in order to avoid the prosecution; in either of which
cases the limitation does not, as stipulated in the proviso to the act, apply.

Ib.
35. In a prosecution against a slave, under the statute (Hutch. Code, 532),

for an assault with intent to kill a white person, the punishment of which is
made death, the indictment must allege that the assault was made with
| express malice; it will not do to allege the offence to have been committed
feloniously, wilfully, and of his malice aforethought."

Anthony v. The State, 263.
36. There is a plain distinction between express and implied malice ; the former

is characterized by a sedate, deliberate, formed design, evidenced by external

circumstances; the other is the offspring of sudden impulse. Jb.
37. The statute constituting the offence of an assault with intent to commit mur-

der on a white man by a slave, the punishment of which is death, uses the
words, "express malice,” as descriptive of the offence; they must, therefore,
be used in the indictment; and if not used, it will make no difference that
the jury found the offence to have been committed with " express malice;”

it will not authorize the sentence of death. 16.
38. It is a general rule that all indictments upon statutes, especially the most

penal, must state all the circumstances which constitute the definition of the
offence in the act, so as to bring the defendant precisely within it; they
must also pursue the precise and technical language employed in the statute,

in the definition or description of the offence. Ib.
39. The circuit court has jurisdiction of an assault committed by a slave on a

white man, with intent to kill him, though made without express malice;
in such case the punishment is the infliction of stripes within a prescribed

limit. Ib.
40. And where a slave has been convicted of an assault, with intent to kill a white

man, under an indictment not charging express malice, and has been sen-
tenced to death by the court below, this court, in reversing the judgment,
will give the judgment on the verdict which the court below ought to have

given. 16.
41. A prisoner indicted for murder has the right to select his jury out of the spe-

cial venire summoned in his case, so far as it is practicable for him to do so,
by exercising his right of challenge for cause, and of peremptory challenge.

Boles v. The State, 398.
42. Where, therefore, a juror, in the call of the venire, stated on his voir dire that

he had not formed or expressed an opinion, and had no conscientious scru-
ples as to the punishment of death for murder, but that his wife was ill, and
a physician had been sent for to see her, and he desired on that account to be
excused; but the counsel for the prisoner objected, and the district attorney
also refused his assent: it was held, to be an unjustifiable exercise of power
for the court, of its own motion, to discharge the juror; for which the pris

oner, after a verdict of conviction, would be entitled to a new trial. lb.
43. After the jury had retired in the case of a prisoner indicted for murder, they

were taken from the jury room by the consent of the prisoner to a neigh-
boring hotel, where rooms were provided for them, and where they dined at
the public table, an officer sitting between them and the other guests; and
while they were at the hotel a barber was admitted to their room to shave
some of them, and was there more than an hour, and for a few minutes

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